Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Tuesday, May 13, 2014

Report from Virginia same-sex marriage argument in Fourth Circuit

I attended argument this morning in Bostic v. Schaefer, an appeal from a judgment declaring Virginia's marriage laws unconstitutional insofar as they deny marriage to same-sex couples and refuse recognition to out-of-state same-sex marriages. The panel consisted of Judge Niemeyer, Judge Gregory, and Judge Floyd.

In keeping with standard practice, the panel's identity was not released until the morning of argument. Going into the argument after learning its composition, the advocates probably estimated that Judge Gregory would be harder on the laws' defenders, that Judge Niemeyer would be harder on the laws' challengers, and that Judge Floyd would be leaning toward affirmance. And that is how the argument seemed to play out.

Judge Gregory described the essence of marriage as individual choice and autonomy while Judge Niemeyer described marriage as a relationship that requires a man and a woman. Judge Floyd's questions focused on the effect on Baker v. Nelson of the line of cases leading up to and including Windsor.

Predicting the outcome of an appeal from the short glimpse provided by oral argument is inherently speculative and not very reliable. But my best guess is that a split panel will hold Virginia's marriage laws unconstitutional; that Judge Gregory will write an opinion that Judge Floyd joins in part (and Judge Floyd might write a short opinion explaining why he does not need to join the entirety of Judge Gregory's opinion); and Judge Niemeyer writes a dissent. I have the least confidence in assessing Judge Floyd's likely vote but base this assessment on the number and tenor of his questions (a handful of more challenging questions for the defenders and a couple of not-too-difficult questions for the challengers) as well as the understanding of Windsor by other lower-court judges.

(More to come later; original post was eaten by my computer. Signing off for now from Padow's.)


Walsh, Kevin | Permalink